quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely
a commonplace arrangement of ordinary words or wellknown data. . . .'"23
[80] Mr Puckrin submitted that "whatever the amount of Moneyweb's article (in each case) used by Fin24, it is the
originality of the parts used which is relevant to the inquiry into whether there has or [has] not been any
reproduction for purposes of the infringement inquiry . . ."24 In argument, he further submitted that if the
part used by Fin24 had been copied by Moneyweb from another source, then it could not be said that Fin24
had copied a substantial part. In this regard, Mr Puckrin relied on two works: Copinger and Skone James on
Copyright25 and The Modern Law of Copyright and Designs:26
". . . The quality or importance of what has been taken is much more important than the quantity. The issue thus
depends therefore not just on the physical amount taken but on its substantial significance or importance to the
copyright work, so that the quality, or importance, of the part is frequently more significant than the proportion which
the borrowed part bears to the whole. . . . Quality and importance must therefore be understood in terms of the
features of the work which made it an original work in the first place. It follows that the quality relevant for the
purposes of substantiality in the case of a literary work refers to the originality of that which has been copied."27
As soon as a situation arises where not all of the work has been copied, or where imitation is not exact, the court has
to decide whether what the defendant has taken is a 'substantial part'; and the answer to that question depends at
least in part on the degree of the originality of the part that is taken."28
[81] I n Express Newspapers Plc v News (UK) Ltd,29 the Chancery Division of the English High Court, in an
application for summary judgment, was required to adjudicate upon a dispute between two newspapers that
had accused each other of breaching copyright in respect of an article that each
Page 219 of [2016] 3 All SA 193 (GJ)
had published. Both articles contained quotations of the words used by the interviewee. In the case:
". . . There is no verbatim quotation of the journalist's own words. The position is different so far as the original article
contains quotations of the actual words used by Mrs Bordes or Miss Ogilvy, as the case may be. The original article
quotes them verbatim. They are then also quoted verbatim in the pirated article. The only source of the verbatim
quotation of the words of Mrs Bordes and Miss Ogilvy to the pirate reporters were the quotations contained in the
original articles."30
[82] Confronted with an application for summary judgment, the court was not willing, or able, to make final
pronouncements. Nevertheless, the court expressed the view that there could be no copyright in the news. In
my view, that is correct. As the court explained:
"I think, therefore, that it is very improbable that the courts would hold that a newspaper could, by reason of the law
of copyright, obtain a monopoly on a news story as opposed to copyright in the actual words used by its reporter in
reporting that story . . ."31
[83] The issue for the court was whether the reproduction of the actual words used by the interviewee, as
reported in the original article, could found a claim for breach of copyright. Relying on Walter v Lane32 a n d
Sands & McDougall Proprietary Ltd v Robinson,33 the court held:
". . . Although Miss Ogilvy had approached the reporter, the whole conduct of the interview and the selection of
quotations involved at least as much (and in my view greater) skill and judgment than merely taking down the words
of a speaker at a public speech. Therefore, in my judgment, in the absence of any other defence, it has been shown
that 'Today' does enjoy reporter's copyright in the words of Miss Ogilvy. It follows that, in the absence of such
defence, by copying those quotations from 'Today's' article, the 'Daily Star' has infringed 'Today's' copyright."34
[84] It seems to me that the English position is no different from our own. If a literary work is eligible for copyright
on the basis of originality, then it is the whole work that is original and not selected parts, even if some of its
parts have been copied from other sources. In my view, the quotations relied upon by Mr Puckrin must be
read in that light, ie the "originality of the part that is taken" also applies to material that has been copied
from other sources.35
[85] I therefore do not agree with Mr Puckrin's submission that if a part used by Fin24 has been copied by
Moneyweb from another source, then it cannot be said that Fin24 has copied a substantial part. In
determining whether a substantial part of the work has been reproduced, the court must make a value
judgment based on the work as a whole, focusing more on the quality of what has been taken than on the
quantity.
Page 220 of [2016] 3 All SA 193 (GJ)
[86] Against this, I turn to consider whether Fin24 has reproduced a substantial part of Moneyweb 5, 6 and 7.
"Amplats: CEO cites JSE rules"
[87] I shall refer to this article as Fin24 5. It was published on 16 January 2013, the same day that Moneyweb 5
was published, at 4:38pm. Seven hours separated publication of the two articles. I have set out the article
below, underlining those parts that are sourced from Moneyweb 5:36
"Amplats: CEO cites JSE rules
Johannesburg Anglo Platinum [JSE:AMS] (Amplats) CEO Chris Griffith responded to comments made by Mineral
Resources Minister Susan Shabangu on Wednesday, saying that despite the fact that there was a public process, JSE
regulations on sensitive information prevented a totally transparent discussion with all stakeholders.
Shabangu questioned the miner's decision to 'leave government out' of its announcement that it may retrench some
14 000 jobs.